MUS WELCOMES NEW ASSOCIATE BRANDON A. BETTS

Meyer, Unkovic & Scott recently welcomed Brandon A. Betts as an associate in the firm’s Employment Law & Employee Benefits and Private Clients Practice Groups.

Betts focuses his practice on the representation of multiemployer and single employer employee benefit plans. He assists with plan design, drafting and compliance with ERISA, the Internal Revenue Code and the Affordable Care Act. Additionally, Betts helps the Employee Benefits group to provide advice for pension and retirement plans, profit-sharing plans, health and welfare plans and apprenticeship programs. He also works in the firm’s Private Clients group where he provides estate planning and administration counsel.

Prior to joining Meyer, Unkovic & Scott, Betts served as a law clerk for Justice David N. Wecht of the Pennsylvania Supreme Court.

Betts earned a J.D. from Duquesne University, and B.A. in history from Penn State University, with minors in business and Italian. He currently resides in the Regent Square neighborhood of Pittsburgh.

Judge Rules City of Pittsburgh Did Not Have Authority to Enact Paid Sick Leave Ordinance

Elaina Smiley
412.456.2821
es@muslaw.com

On August 3, 2015 the Pittsburgh City Council passed the Paid Sick Leave Ordinance, which was signed into law by Mayor Peduto on August 13, 2015. The ordinance required employers to provide paid sick leave to most employees working within the geographical boundaries of the City of Pittsburgh.  Under the ordinance, employees would accrue one hour of paid sick time for every 35 hours worked for up to 40 hours of paid sick time for employers with fifteen or more employees, and 24 hours of paid sick time for employers with fewer than fifteen employees. The ordinance was initially scheduled to be effective on January 11, 2016.

The ordinance was challenged by the Pennsylvania Restaurant & Lodging Association and various other businesses operating in the City.  They argued that the City of Pittsburgh is a home rule charter municipality governed by state law which places limitations on the City's authority to enact any ordinance determining any duty, responsibility, or requirement of a business or private employer.  The Judge disagreed with the City's argument that it was empowered to adopt the ordinance by the Disease Prevention and Control Law.

The court agreed with the Pennsylvania Restaurant & Lodging Association and found that the City of Pittsburgh did not have the statutory authority to enact the Ordinance.  By Order dated December 21, 2015, the Judge ruled that the Paid Sick Leave Ordinance is invalid and unenforceable.  Therefore, employers have no legal obligation to provide any paid sick time for employees working in the City of Pittsburgh.

For more information about this decision and other employment law matters, contact Elaina Smiley, or any other Meyer, Unkovic & Scott attorney with whom you have worked.

Tips for Creating a "Friendly" Workplace

Here is an article offering a few suggestions for avoiding workplace discrimination and harassment, "Tips for Creating a "Friendly" Workplace".

Accommodating Pregnant Employees

Elaina Smiley’s article “Accommodating Pregnant Employees” recently appeared in the Pittsburgh Post-Gazette. You can access the online version using this link.

Increase Employee Retention

This article offers a few helpful suggestions for improving employee retention, "4 Smart Ways to Increase Employee Retention".

Same-Sex Marriage Update

On May 20, 2014, a federal Judge for the Middle District of Pennsylvania issued an opinion effectively lifting the state's ban on same sex marriage. The plaintiffs in Whitewood v. Wolf challenged the constitutionality of Pennsylvania's marriage laws, claiming these laws denied them Due Process and Equal Protection rights guaranteed by the Constitution. In describing PA's marriage laws and previous laws that discriminated against people based on their gender or race, Judge John E. Jones, III stated in his opinion that, "[w]e are a better people than what these laws represent, and it is time to discard them into the ash heap of history." This ruling is in line with a series of similar decisions that have occurred in the wake of the Supreme Court's United States v. Windsor decision. Windsor struck down Section 3 of the Federal Defense of Marriage Act ("DOMA"), which defined marriage as the union of one man and one woman for federal law purposes.

What impact does this decision have on employers? While there are no federal laws that protect employees against discrimination for their sexual orientation, twenty-one states do have such laws. Pennsylvania currently does not protect workers from discrimination based on sexual orientation on the state level. However, 34 municipalities in the state have passed laws protecting employees from this type of discrimination. In addition, employers may face sex discrimination claims under Title VII of the Civil Rights Act of 1964 ("Title VII") if they treat employees with same sex spouses in a disparate manner. The Equal Employment Opportunity Commission ("EEOC") enforces the ban against discrimination based on sex through Title VII, the Equal Pay Act of 1963, and the Civil Rights Act of 1991. While these laws do not cover sex discrimination based on sexual orientation, they do cover sex discrimination based on sex stereotyping. Recent rulings by the EEOC have determined that an employee can file a claim for sex discrimination based on sexual orientation because it is a form of sex stereotyping. In addition, President Obama signed an executive order prohibiting federal contractors from discriminating against employees based on sexual orientation. For employers, this presents a number of issues. Employers who discriminate against employees in the workplace who have same sex spouses could find themselves facing claims under Title VII or, depending where the employment is located, a state law or a local ordinance. Furthermore, employers could face claims of sex discrimination if they provide certain employee benefits to opposite sex spouses while excluding same sex spouses.
 
Employers who sponsor a qualified retirement plan will want to ensure that the plan treats same sex spouses in the same manner that opposite sex spouses are treated. After Windsor, survivor benefits offered to opposite sex spouses will now have to be offered to same sex spouses. Likewise after the Whitewood decision, if a same sex marriage ends in a divorce in Pennsylvania, a Qualified Domestic Release Order ("QDRO") issued for a same sex spouse will need to be treated as if issued for an opposite sex spouse.
 
Employers that sponsor welfare plans will have to consider offering spousal coverage to same sex spouses if their plan currently covers opposite sex spouses. Under the Employee Retirement Income Security Act ("ERISA") and under the Affordable Care Act ("ACA"), welfare plans are not required to offer spousal coverage. However, if the plan does offer spousal coverage but limits the coverage only to opposite sex spouses, the sponsoring employer may face a sex discrimination claim. Similarly, if an employer is required to contribute to a multiemployer welfare plan as part of a collective bargaining agreement, the employer could face the same risk of a sex discrimination claim if that plan offers spousal coverage only to opposite sex spouses.

For more information about the lift of the state's ban on same sex marriage and other employment law matters, please contact Joseph A. Vater, Jr. or Stephen A. Chesney.

Hot Topics in Employment Law: Tips to Stay In Compliance

Hosted by: Employment Law and Employee Benefits Group

Date: Tuesday, September 30
Time: 8:30 - 10:30 am
Location: The Rivers Club
Price: Admission is complimentary
RSVP: Send email to rsvp@muslaw.com by September 24

This seminar will discuss the following "hot topics" and recent changes in employment law that you and your company will need to know to remain in compliance with employment law matters:

• Same-Sex Marriage Issues and Implications - With the recent same-sex marriage ruling in Pennsylvania, we will discuss how HR Departments should be evaluating policies and benefit plans so they comply with the ruling.
• EEOC Guidance on Pregnancy Discrimination - Understand the EEOC's guidance on how employers must deal with pregnancy-related issues as compared to accommodations provided to other employees.
• NLRB McDonald's Franchise Ruling - Learn how joint liability corporations, far removed from day-to-day personnel decisions made by franchisees and contractors, may be exposed to new legal risks.
• Pennsylvania Non-Competes Update - The recent court ruling serves as a warning to all employers of the difficulty of enforcing non-compete agreements in Pennsylvania.
• FMLA Notices to Employees - With the recent court ruling, employers and third-party administrators responsible for sending FMLA and other employee notices need to review their current procedures for notification to employees.

Please join us to learn the various tips necessary to protect yourself and your company from employment law related disputes.

Here is the full invitation:

EEOC Issues New Pregnancy-Related Protections

Beth A. Slagle
bas@muslaw.com

In response to the steadily rising rate of pregnancy-related claims of workplace discrimination, the Equal Employment Opportunity Commission (EEOC) has issued new guidance that gives more protection to employees who are pregnant, have recently had children or want to take leave to care for a new child.

The first part of the EEOC's guidance addresses the Pregnancy Discrimination Act (PDA) in the first update since it was enacted in 1978. The PDA is an amendment to Title VII of the Civil Rights Act of 1964, which prohibits employers with 15 or more employees from discriminating against employees on the bases of race, color, religion, sex or national origin. The PDA clarifies that prohibited discrimination based on sex extends to matters related to pregnancy, childbirth or related medical conditions. Thus, employers may not fire, refuse to hire, reduce pay, demote or otherwise negatively affect the working conditions of an employee because of matters related to pregnancy or childbirth.

The EEOC's new guidelines use a variety of scenarios and examples to illustrate employers' actions that it considers discriminatory in relation to current, past or possible future pregnancies. Examples include:

• A janitor tells her boss that she is pregnant. Despite her assertions that she can still perform her job, her boss is concerned that the physical demands of the job are bad for the baby and forces the worker to take leave right away. By the time the employee gives birth, she has exhausted her leave and is fired.
• A nurse is fired shortly after returning from maternity leave, even though her supervisor assured her that her job would be safe. Although her employer claims that it had to eliminate her position because of over-staffing, it did not dismiss any other workers, nor is there evidence that there is not enough work to do.
• An executive tells her supervisor that she is thinking about having a second child. Her manager has a negative reaction, and voices concerns that she won't be able to handle her job responsibilities. Two weeks later, the woman is demoted to a lower-paid position with less demanding job duties.

The EEOC requires employers to offer the same protections to men as women when requesting leave to care for a child. For example, if an employer offers new mothers six months of paid leave to bond with their new babies, they must offer the same benefit to new fathers.

The second part of the EEOC's guidance addresses for the first time how impairments related to pregnancy and childbirth may be covered by the Americans with Disabilities Act (ADA) in certain situations. While pregnancy itself is not a disability under the ADA, medical conditions related to pregnancy may qualify as a protected disability.

The ADA requires employers to provide reasonable accommodations to employees with disabilities. For pregnant employees, the most commonly requested accommodation is a light duty, which may mean that the employee does not have to lift heavy objects or perform certain physically-taxing tasks. The EEOC does not require employers to accommodate pregnant workers' requests for light duty. If the employer provides light duty jobs to employees in other circumstances, however, such as those with an injury or recovering from surgery, it must also provide light duty options to pregnant women.

In most cases, the most important aspect of a light duty request is whether it affects the primary function of the job. For example, a pregnant woman who works in a warehouse may not be able to perform primary job functions if she cannot lift more than 20 pounds. Unless the employer accommodates other warehouse workers who cannot lift heavy weights, such as a worker with a broken arm, the employer may have the right to dismiss the pregnant employee. A contrary example may be an administrative assistant who lifts heavy boxes only when the office receives its paper supply every other month. Because heavy lifting is a very small part of her job, it would be little hardship to the company to work around her restriction.

The key theme in the EEOC's new guidance is that employers must treat employees who are pregnant, have recently had a child or may have children in the future equally with workers in comparable scenarios. Employers must make decisions based solely on employees' ability to perform the functions of their job, and not apply any stereotypes about the expectations about what an employee may or may not be able to do.

For more information about non-compete agreements and other matters related to employment law, contact Beth Slagle at bas@muslaw.com or 412-456-2890.

Beth Slagle has practiced law for more than 20 years and focuses her practice on business disputes and employment law. Beth's work has earned her a spot in Best Lawyers in America since 2010, and she is the chair of the firm's Insurance Coverage Litigation Group. She can be reached at bas@muslaw.com or 412.456.2890. 
  
This material is for informational purposes only.  It is not and should not be solely relied on as legal advice in dealing with any specific situation.

Think Twice About "Maximum Medical Leave" Employee Policies

The article "Think Twice About ‘Maximum Medical Leave’ Employee Policies" by Antoinette Oliver and Elaina Smiley recently appeared in Western Pennsylvania Healthcare News. You can access the online version here.

Meyer, Unkovic & Scott Welcomes Kathryn Angliss and Stephen Chesney

Kathryn Angliss Joins Meyer, Unkovic & Scott's Litigation and Dispute Resolution Group 

Kathryn L. Angliss

Prior to joining the firm, Ms. Angliss served as a Law Clerk to The Honorable Christine A. Ward in the Commerce and Complex Division of the Court of Common Pleas of Allegheny County.

She earned her law degree from the University of Pittsburgh School of Law in 2011.  She also received the University of Pittsburgh School of Law Community Service Award.

While in law school, Ms. Angliss interned for The Honorable Lisa Pupo Lenihan (Western District of Pennsylvania).

She graduated with a B.A. from Point Loma Nazarene University in San Diego, California, in Political Science.  Prior to pursuing her legal education, Ms. Angliss worked in the Washington, D.C., office of Congresswoman Mary Bono and served as a Legislative Coordinator at the Edison Electric Institute.

To read her complete bio, click here.


Stephen Chesney Joins Meyer, Unkovic & Scott's Employment Law & Employee Benefits and the Construction Law & Litigation Groups

Stephen A. Chesney

Prior to joining the firm, Mr. Chesney worked in the construction industry as a member of the Heat and Frost Insulators Local Union #2. He served three terms as an executive board member and eight years as a Trustee for the Heat and Frost Insulators Local Union #2 Pension and Annuity Funds.

He received his B.S. in Communications and Information Technology, cum laude, from Duquesne University in 2009. In 2013, he received his J.D. from Duquesne University Law School.

To read his complete bio, click here.

Severance Agreements May Go Too Far

Beth Slagle's article "Severance Agreements May Go Too Far" recently appeared in Western Pennsylvania Healthcare News. You can access the online version here.

Compensation For Signing Non-Competes

Beth A. Slagle

Most employers ask some or all of their employees to sign non-compete agreements to prevent them from leveraging the knowledge and connections gained during the course of their employment to get a job with a competitor.

Although many employers may not realize it, Pennsylvania law dictates that employers always must offer employees some type of valuable compensation in exchange for signing a non-compete agreement. Without compensation, the company will be unable to enforce the agreement in Pennsylvania courts.

It's a common misconception that employers can get around the compensation rule by making sure that the non-compete agreement says that both employee and employer "intend to be legally bound" by the document.  The belief comes from Pennsylvania's Uniform Written Obligations Act (UWOA), which states that any contract is valid, even if no payment or other benefits have been exchanged, as long as the contract states that both parties intend to be legally bound by it.

But a recent ruling by the Pennsylvania Superior Court forcefully dispelled that misconception, making it clear that the rule to give employees compensation for signing non-compete agreements trumps the UWOA.

In the case, a company hired a salesman who had worked for it previously.  Upon accepting employment, the company asked him to sign a non-compete agreement that restricted him from working for a competitor for two years after leaving the company.  Later, the company asked the salesman to sign another agreement that further restricted him from working for competitors in several states, including Pennsylvania. The salesman was given no extra compensation or consideration for signing the non-compete agreement.

When the salesmen took a job with a competitor in Pennsylvania, his former employer threatened legal action against the new employer, which fired the salesman. The salesman then sued his former employer, claiming that his non-compete agreement was invalid because the company didn't compensate him for signing it.   The company argued that despite the lack of compensation, the contract was legally binding under the UWOA.

The Pennsylvania Superior Court ruled in favor of the salesman, noting that non-compete agreements "have always been disfavored in Pennsylvania." The UWOA does not relieve employers of their obligation to compensate employees for signing non-compete agreements.  For new employees, the job itself is acceptable compensation.  But for existing employees, employers must offer some other benefit, such as a bonus or promotion.  Courts do not consider "continued employment" to be acceptable compensation.

The ruling serves as a warning to all employers of the difficulty of enforcing non-compete agreements in Pennsylvania.  Employers should review their non-compete agreements and administration policies to make sure that the agreements are enforceable in court.

For more information about non-compete agreements and other matters related to employment law, contact Beth Slagle at bas@muslaw.com or 412-456-2890.

Beth Slagle has practiced law for more than 20 years and focuses her practice on business disputes and employment law. Beth's work has earned her a spot in Best Lawyers in America since 2010, and she is the chair of the firm's Insurance Coverage Litigation Group. She can be reached at bas@muslaw.com or 412.456.2890. 

Boost Company Culture

This Mashable article offers a few helpful suggestions to assist with improving company culture, "Nine Tips for Better Company Culture".

EEOC Sues CVS Pharmacy

The Equal Employment Opportunity Commission ("EEOC") recently commenced litigation against CVS Pharmacy, Inc., in the U.S. District Court for the Northern District of Illinois claiming that certain provisions of a severance agreement used by CVS violates Title VII of the Civil Rights Act of 1964 because it is "overly broad, misleading and unenforceable..." Equal Employment Opportunity Commission v. CVS Pharmacy, Inc., Civil Action No. 14 C 0863 (N.D. Ill., February 7, 2014).


According to the EEOC, "CVS conditioned the receipt of severance benefits for certain employees on an overly broad severance agreement set forth in five pages of small print. The agreement interfered with employees' right to file discrimination charges and/or communicate and cooperate with the EEOC." (EEOC Press Release, 2/7/14.)

The EEOC identified various sections of the CVS Agreement that violated Title VII:

• A cooperation clause requiring the employee to promptly notify CVS' General Counsel if the employee is contacted related to legal proceedings including contacts by "any investigator, attorney or any other third party."
• A non-disparagement clause prohibiting the employee from making any disparaging statements about CVS and its officers, directors, and employees.
• A non-disclosure provision prohibiting disclosure to any third party of confidential information without prior written permission of CVS.
• A general release of claims that included a release of all "causes of action, lawsuits, proceedings, complaints, charges, debts contracts, judgments, damages, claims, and attorney fees," including "any claim of unlawful discrimination of any kind."
• A covenant not to sue clause where the employee represents that he/she has no pending lawsuit against CVS and prohibits the employee from filing any lawsuit. In the event of a breach, the employee is required to reimburse CVS for any legal fees that it incurs resulting from the employee's breach of the covenant not to sue.
• A provision stating that in the event of the employee's material breach of the Employee Covenants section of the agreement, CVS would be entitled to obtain injunctive and other relief, including attorney fees.

Based on these sections, the EEOC claims that CVS is engaging in a "pattern or practice of resistance to the full enjoyment of the rights secured by Title VII" alleging that such provisions deter the filing of charges and interferes with an employee's ability to communicate voluntarily with the EEOC and Fair Employment Practice Agencies. "Charges and communication with employees play a critical role in the EEOC's enforcement process because they inform the agency of employer practices that might violate the law[.] For this reason, the right to communicate with the EEOC is a right that is protected by federal law. When an employer attempts to limit that communication, the employer effectively is attempting to buy employee silence about potential violations of the law. Put simply, that is a deal that employers cannot lawfully make." (EEOC Press Release, 2/7/14.)


Although the EEOC notes that the CVS Agreement contains a statement that "[n]othing in this paragraph is intended to or shall interfere with an Employee's right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws[,]" the EEOC found this disclaimer ineffective, stating that it is a "single qualifying sentence that is not repeated anywhere else in the Agreement[.]"


While there is no ruling yet on the litigation filed by the EEOC against CVS, (and it is possible that the EEOC's complaint, ultimately, will be dismissed in its entirety), in light of the EEOC's current position about language in separation agreements, employers should carefully review their agreements, being mindful of the length of the agreement, any limitations on an employee's rights and abilities to file administrative charges alleging discrimination, as well as any provisions limiting an employee's communications to administrative agencies and third parties.
  

Beth Slagle has practiced law for more than 20 years and focuses her practice on business disputes and employment law. Beth's work has earned her a spot in Best Lawyers in America since 2010, and she is the chair of the firm's Insurance Coverage Litigation Group. She can be reached at bas@muslaw.com or412.456.2890.

Exploring Employee Incentives

Exploring employee incentives? There are some useful facts, figures and incentives for rewards and recognition in this article, "Exploring Employee Incentives".

Essential Employee Handbook Updates

Updating your employee handbook? Here are a few items you'll want to include, "Updating Your Employee Handbook: The Essentials".

Employees Working From Home

Beth Slagle’s recently wrote an article that appeared in Western Pennsylvania Healthcare News. You can view it at "Employees Working from Home Increase Employers’ Liability".

New Partners Announced

Meyer, Unkovic & Scott has named attorneys Jason Mettley, Andrew Noble, Sarah Reigle and Jason Yarbrough as new partners at the Pittsburgh-based law firm.

Jason Mettley works with clients on matters related to employee benefit plans, including plan design and drafting, fiduciary responsibility, plan governance and contributions collections. He has litigated a broad range of Employee Retirement Income Security Act (ERISA) cases and has extensive experience working with employers and labor organizations on collectively bargained retirement plans. Mettley graduated from Allegheny College and Widener University School of Law. He currently resides in Squirrel Hill.

Andrew Noble is a member of the firm’s Business Litigation, Tort Litigation and Intellectual Property Groups. He has represented large corporations and small businesses in both state and federal courts in cases involving breach of contract, copyright infringement, trade secret misappropriation, insurance coverage, oil and gas leases and commercial landlord-tenant disputes. He graduated from the University of Pittsburgh and the University of Pittsburgh School of Law. Noble is a resident of Oakmont.

Sarah Reigle is a member of Meyer, Unkovic & Scott’s Real Estate & Lending and Corporate & Business Law Groups. She focuses her practice on commercial real estate transactions, advising clients on the purchase, development, use and sale of real estate.  Reigle also represents landlords and tenants in leasing transactions involving industrial, retail, office and mixed-use properties.  In addition, she represents borrowers and lenders in connection with commercial financing transactions. Reigle graduated from Franklin & Marshall College and Cornell Law School. She resides in Franklin Park.

Jason Yarbrough is a member of Meyer, Unkovic & Scott’s Construction Law, Litigation & Dispute Resolution and Creditors' Rights Groups. Yarbrough represents corporations, officers, individuals and family-owned businesses in a variety of complex commercial, construction and real estate litigation matters.  Yarbrough serves on the Allegheny County Bar Association’s Construction Council, and has represented owners, contractors, engineers, and code enforcement officials in disputes arising out of both public and private construction projects. He also frequently litigates claims involving contractual disputes, commercial landlord-tenant matters, claims arising out of the sale or lease of commercial and residential real estate, and real property tax assessments. He graduated from the University of Notre Dame and the University of Pittsburgh School of Law. Yarbrough lives in Hampton Township.